State v. McWilsonState v. McWilson
Decided: January 24, 2022
Judgment: Affirmed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Nathan A. Ray, 137 South Main Street, Suite 201, Akron, OH 44308 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Martise McWilson, appeals from his sentence for Felonious Assault in the Portage County Court of Common Pleas. For the following reasons, we affirm the judgment of the lower court but remand with instructions for the lower court to issue a nunc pro tunc entry consistent with this opinion.
{¶2} On October 11, 2020, McWilson was indicted by the Portage County Grand Jury for Attempted Aggravated Murder (Count One), a felony of the first degree, in violation of
{¶3} McWilson entered a plea of guilty to Felonious Assault as charged in the indictment, which related to a drive-by shooting incident in Ravenna. After reviewing the rights waived by entering a guilty plea, the trial court accepted the plea and found him guilty of the offense. This was memorialized in a January 20, 2021 Judgment Entry. A nolle prosequi was entered on the remaining counts of the indictment and the specifications.
{¶4} A sentencing hearing was held on February 22, 2021. Defense counsel requested that the sentence be ordered concurrent to a five-year prison sentence imposed for prior Burglary and Arson convictions in Portage County Court of Common Pleas Case Nos. 2019 CR 0267C and 2019 CR 0349. Counsel observed that McWilson was a young man from a good family. McWilson apologized for the offense and letting down the court, stating that he had good intentions but had hung out with the wrong crowd. The State made no recommendation as to the sentence.
{¶5} The court emphasized that it had given McWilson opportunities with probation for past offenses but he had “thrown them away.” It observed that the victim could have been killed in the shooting and that McWilson had escalated his behavior. The court ordered that he serve a prison term of four to six years, consecutive with the sentence imposed in
{¶6} McWilson timely appeals and raises the following assignments of error:
{¶7} “[1.] The trial court committed reversible and plain error when it sentenced defendant to consecutive terms without strictly complying with
{¶8} “[2.] The trial court committed reversible and plain error when it failed to properly consider the sentencing factors as set forth in
{¶9} In his first assignment of error, McWilson argues that the consecutive sentences are invalid because the findings made at the sentencing hearing were inconsistent with those contained in the sentencing entry.
{¶10} “The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.”
{¶11} “Under
{¶12} There is no question that the trial court made the first two
{¶13} We initially note that the court made the
{¶14} As to the
{¶15} As to the finding that consecutive sentences were justified due to McWilson‘s commission of the crime while on community control, this finding was made at the sentencing hearing but not in the entry. In similar circumstances, where the court made a
{¶16} McWilson requests that this court remand for a new sentencing hearing. The appropriate remedy is not a resentencing hearing but an order for the lower court to correct its sentencing entry since the court made the necessary findings at the hearing but failed to properly state them in the entry. See Id. at ¶ 18 (“clerical mistakes in the sentencing entry can be corrected via a nunc pro tunc entry [while] a trial court‘s failure to make the
{¶17} McWilson also argues that the trial court‘s consecutive sentencing findings were “not supported by the evidentiary record.”
{¶18} In relation to findings necessary to order consecutive sentences, this court has explained that “the court of appeals * * * must clearly and convincingly find that the record does not support the court‘s findings,” a standard characterized as “extremely deferential.” (Citation omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23, quoting State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, et al., 2013-Ohio-5759, ¶ 31; State v. Forsell, 11th Dist. Portage Nos. 2019-P-0116, et al., 2020-Ohio-5381, ¶ 15. “[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29.
{¶19} As to the findings that consecutive sentences are necessary to punish the offender or protect the public from future crime and that his criminal history necessitates such protection, the Presentence Investigation Report indicates that, although McWilson is only twenty years old, he has been convicted of multiple crimes, including Burglary and Arson. McWilson has committed multiple serious criminal offenses, which supports a finding that his sentence was necessary to protect the public from future crime.
{¶20} Regarding the finding under
{¶21} Finally, as to the finding that the sentences are “not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public,” the record demonstrates the danger for the reasons outlined above. Further, after reviewing the conduct constituting the offense in the present matter, the lower court emphasized that McWilson‘s behavior had “escalated.” McWilson was accused of shooting out of a vehicle on a public street at an individual and could have killed the victim. This conduct is unquestionably serious. This information was part of the record relied upon by the trial court and justified its finding.
{¶22} As outlined above, it is accurate that the course of conduct finding made in the entry was not supported by the record but this issue is moot since the trial court is instructed to remove that finding from its entry.
{¶23} The first assignment of error is with merit, in part.
{¶24} In his second assignment of error, McWilson argues that the record does not demonstrate the trial court considered the sentencing factors in
{¶25} “A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing” which include protecting the public, punishing the offender, and promoting rehabilitation of the offender using the minimum sanctions that accomplish those purposes without burdening government resources.
{¶26} “The court is merely to ‘consider’ the foregoing factors as ‘there is no mandate for judicial fact-finding.‘” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42; State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31 (
{¶27} McWilson notes he “is not arguing that the trial court imposed an improper sentence, rather his argument is that the court never even considered the sentencing factors of
{¶28} A court is not required to “expressly indicate” that it considered the factors under
{¶30} The second assignment of error is without merit.
{¶31} For the foregoing reasons, McWilson‘s sentence for Felonious Assault in the Portage County Court of Common Pleas is affirmed. This matter is remanded with instructions for the trial court to issue a new sentencing entry consistent with this opinion. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.